Lamontagne v. Canada, docket A-433-97

Date: 19980310

Dockets: A-433-97

A-434-97

CORAM:      STRAYER J.A.

         DÉCARY J.A.

         ROBERTSON J.A.

     Docket: A-433-97

BETWEEN:

     DENIS LAMONTAGNE

     Applicant

     (Appellant)

     - and -

     HER MAJESTY THE QUEEN

     Respondent

     (Respondent)

AND:

     Docket: A-434-97

BETWEEN:

     WAWOTA ENERGY PRODUCTS LTD.

     Applicant

     (Appellant)

     - and -

     HER MAJESTY THE QUEEN

     Respondent

     (Respondent)

Heard at Regina (Saskatchewan) on Tuesday, March 10, 1998.

Judgment delivered from the Bench on March 10, 1998.

REASONS FOR JUDGMENT

OF THE COURT DELIVERED BY:      DÉCARY J.A.

Date: 19980310

Dockets: A-433-97

A-434-97

CORAM:      STRAYER J.A.

         DÉCARY J.A.

         ROBERTSON J.A.

     Docket: A-433-97

BETWEEN:

     DENIS LAMONTAGNE

     Applicant

     (Appellant)

     - and -

     HER MAJESTY THE QUEEN

     Respondent

     (Respondent)

AND:

     Docket: A-434-97

BETWEEN:

     WAWOTA ENERGY PRODUCTS LTD.

     Applicant

     (Appellant)

     - and -

     HER MAJESTY THE QUEEN

     Respondent

     (Respondent)

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Regina (Saskatchewan)

     on Tuesday, March 10, 1998)

DÉCARY J.A.

[1]      These applications for judicial review having been heard together on common evidence, the following reasons will apply to both of them.

[2]      The Tax Court Judge dismissed the applicants' appeals from their respective reassessments on the basis of findings of fact and of credibility which in our view are unassailable in the circumstances. The Tax Court Judge, however, oblivious of the fact that the appeals had been filed under the Informal Procedure outlined in the Tax Court of Canada Act¹ ("the Act"), went on to award costs to the respondent. As conceded by counsel for the respondent, subsection 18.26(1) of the Act makes it clear that the Court's only discretion is to award costs in favour of an appellant and there is no authority to award costs in favour of the respondent, Her Majesty the Queen.

[3]      The applications will therefore be allowed, the decision the Tax Court of Canada will be set aside and the two matters will be referred back to that Court for redetermination on the basis that the appeals ought to be dismissed, but without costs.

     "Robert Décary"

     J.A.

__________________

¹      R.S.C. 1985 (4^th Supp.), c. 51, s. 5.